Humanitext Reader

Justinian I · The Digest of Justinian §8.3.32.pr

Creation of Right of Way Upon Transfer of Co-Ownership

Passage 1441 of 9271 · Latin

Summary

When one co-owner of a common estate delivers their share along with a right of way to that estate through their own private neighboring land, the servitude is validly established. This does not violate the principle of indivisibility of servitudes, because the right is acquired for the moment when the estate becomes the sole property of the recipient.

[AFRICANUS libro sexto quaestionum. ] §8.3.32.prFundus mihi tecum communis est: partem tuam mihi tradidisti et ad eundem uiam per uicinum tuum proprium.
[AFRICANUS, Questions, Book 6] An estate is in common between you and me: you have delivered your share to me, and also a right of way to the same estate through your own neighboring estate.
recte eo modo seruitutem constitutam ait neque quod dici soleat per partes nec adquiri nec imponi seruitutes posse isto casu locum habere: hic enim non per partem seruitutem adquiri, utpote cum in id tempus adquiratur, quo proprius meus fundus futurus sit.
He says that the servitude was validly established in this manner, and that the common saying that servitudes can neither be acquired nor imposed in part has no application in this case; for here the servitude is not acquired in part, inasmuch as it is acquired for that time when the estate will be my sole property.

Notes

  1. 8.3.32.pruicinum tuum proprium — The adjective "uicinus" (neighboring) is substantivized here to refer to "the neighboring estate" (modifying an implied "fundum", or as a neuter noun "uicinum") rather than "neighbor". "proprius" (own/private) stands in contrast to "communis" (common) to indicate that this neighboring land belongs solely to the transferor.
  2. 8.3.32.prnon per partem seruitutem adquiri — Part of an accusative-and-infinitive (AcI) construction depending on the main verb "ait" (he says). It explains why the principle of indivisibility of servitudes (which prohibits their acquisition in part) is not violated here: because the transfer of the share and the establishment of the right of way occur in such a way that the servitude takes effect at the exact moment the estate becomes sole property, meaning no partial servitude is ever acquired.

Cite this passage

Justinian I, The Digest of Justinian §8.3.32.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:8.3.32.pr

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